Delhi District Court
This Suit Was Originally Filed For ... vs Page No. 1 Of on 22 January, 2019
IN THE COURT OF NAVEEN K. KASHYAP,
SENIOR CIVIL JUDGE-CUM-RENTCOLLER, NORTH-WEST DISTRICT,
ROHINI COURTS COMPLEX, DELHI.
Civil Suit no: 61701/16
Sh. Sharad Aggarwal
S/O Sh. Chand Rattan Aggarwal
R/O. 18, Doctor Lane, Gole Market
New Delhi-110001.
......... Plaintif
Versus
Sh. Ashok Kumar Kakkar
S/O. Sh. Ram Lubhay Kakkar
R/O. D-14/29-30, Third Floor
Sector-7, Rohini,
Delhi-110085 .......... Defendant
Date of Institution : 04.06.2016
Date of pronouncing judgment : 22.01.2019
Decision : Suit ex parte decreed.
FINAL JUDGMENT
1. This suit was originally filed for possession, permanent
injunction and recovery of damages.
2. Case of plaintiff is that he is the owner of premises i.e.
entire third floor of H. No. C-9/239, Sector-7, Rohini, Delhi.
That the defendant was inducted as a tenant in the said
premisesvide registered rent agreement dated 26.12.2014
CS No. 61701/16
Sharad Aggarwal
Vs. Page No. 1 of 10
Ashok Kumar Kakkar
on monthly rent of Rs. 5,000/- per month excluding water
and electricity charges. That the said rent agreement was
duly registered on 27.12.2014. That defendant deposited
sum of Rs. 10,000/- as interest free refundable security
amount. That on expiry of the said agreement by efflux of
time on 10.04.2016, the plaintiff asked the defendant to
vacate the said premises but the defendant lingered on
the matter. It is stated that tenancy of the defendant
stands terminated by the efflux of time on 10.04.2016.
Hence, defendant has no right to remain in possession of
the said premises. The plaintiff has sought possession of
the tenanted premises, mesne profits @ Rs 1,000/- per
day w.e.f. 11.04.2016 till the day of handing over of vacant
peaceful possession of the suit property to the plaintiff,
decree of permanent injunction seeking to restrain the
defendant and his agents etc from creating third party
interest in the suit property and costs of suit.
3. Defendant in his written statement has denied that the
plaintiff is the owner of the suit property. Defendant has
however admitted the factum of tenancy. It is submitted
that after expiration of agreement dated 26.12.2014,
plaintiff has further extended the rent agreement for
further period of two years. That the tenancy of the
defendant has not been validly terminated by the plaintiff.
That the last rent by way of cash was given to the plaintiff
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Sharad Aggarwal
Vs. Page No. 2 of 10
Ashok Kumar Kakkar
on 11.04.2016 for month of May, 2016. That the plaintiff
refused to accept further rent and Rs. 5,000/- were sent to
the plaintiff by money order dated 13.05.2016 but the
plaintiff also refused to accept the money order. The
remaining assertions in the plaint have been denied.
4. At this stage, it is pertinent to note that after filing of WS,
vide judgment and admission U/O. 12 R 6 CPC passed by
my Ld. Predecessor on 09.05.2017, prayer no. (i) relating
to decree of ejectment in his favour and against the
defendant, was allowed. It is further pertinent to note that
thereafter in execution proceedings, the plaintiff even got
possession of the suit premises on 25.05.18.
5. It is further matter of record that as such thereafter the
following issues were framed relating to remaining prayers
only vide order dated 24.07.18 :
1. Whether the plaintiff is entitled to recovery of sum of
Rs. 52,000/- towards arrears of rent/damages? OPP
2. Whether the plaintiff is entitled to penalty/damages
with effect from 11.04.2016 till actual handing over of
possession of suit property by the defendant? OPP
3. Relief.
6. It is further pertient to note that the defendant was not appearing
and as such at this stage, he was proceeded ex-parte.
7. The plaintiff examined himself as PW-1 and proved his over all
case by evidence by way of affidavit Ex. PW-1/A. In such
evidence, he repeated the stand taken by him in original suit.
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Sharad Aggarwal
Vs. Page No. 3 of 10
Ashok Kumar Kakkar
Further, he proved original rent agreement dated 26.12.2014 as
Ex. PW-1/1. Further, he proved copy of police complaint as Ex.
PW-1/2. The plaintiff did not examine any other witness and the
ex-parte plaintiff's evidence was closed.
8. I have heard ex-parte final arguments of Ld. counsel for plaintiff
and gone through the record.
9. As the defendant is ex-parte, the testimony of plaintiff remained
unrebutted. As such this court has no reason not to believe the
same. On a bare perusal of evidence of PW-1, particularly in view
of rent Agreement Ex. PW 1/1, it is held that plaintiff is able to
prove there is landlord tenant relationship between the plaintiff and
defendant. It is further proved that rate of rent was Rs. 5,000/=
p.m. excluding water and electricity charges etc.
Thus, it is held that as such suit premises in question does
not fall within the ambit of Delhi Rent Control Act.
Further, the identity and description of suit premises in
question is also not is dispute.
10. Further, it is already held by my Ld. Predecessor in judgment
dated 09.05.2017 on admissions U/o. 12 R 6 CPC that in any
case, even if legal notice was not sent before filing the present
suit, still the present suit is maintainable. It was observed by him :
"....... 20. It has been asserted on behalf of defendant
that there is no termination of his tenancy. However, the
defendant himself has asserted in para no. 6 of the reply
on merits that the plaintiff refused to accept the rent for
May-June, 2016. Even if the said contention is taken at
its face value, even then the defendant himself has
attributed an intention to terminate the tenancy to the
plaintiff. Also, in Nopany Investments (P) Ltd. vs.
CS No. 61701/16
Sharad Aggarwal
Vs. Page No. 4 of 10
Ashok Kumar Kakkar
Santokh Singh (2008)2 SCC 728, Apex Court held that
filing of suit itself is a notice to quit on a tenant and
therefore no notice to quit under section 106 of the Act
is necessary to enable the landlord to get the decree of
possession. The observations of Apex Court are
reproduced asunder: In any view of the matter, it is well settled
that filing of an eviction suit under the general law itself is a notice to
quit on the tenant. Therefore, we have no hesitation to hold that no
notice to quit was necessary under section 106 of Transfer of Property
Act in order to enable the respondent to get a decree of eviction
against the appellant.
21. This was followed by Jeevan Diesels & Electricals Ltd. vs. M/s Jasbir Singh Chaddha (HUF) 182 (2011) DLT 402 wherein it was held that even assuming that notice of termination of tenancy was not served, mere filing of the suit was a notice to quit and the tenancy shall stand determined on filing of the suit. It was observed, " In my opinion similar logic can be applied in suits for possession filed by landlords against the tenants where the tenancy is a monthly tenancy and which tenancy can be terminated by means of a notice under section 106 of the Transfer of Property Act. Once we take the service of plaint in the suit to the appellant/defendant as a notice terminating tenancy, the provision of Order 7 Rule 7 Code of Civil Procedure can then be applied to take notice of subsequent facts and hold that the tenancy will stand terminated after 15 days of receipt of service of summons and the suit plaint. This rationale ought to apply because after all the only object of giving a notice under section 106 is to give 15 days to the tenant to make alternative arrangement. In my opinion, therefore, the argument that the tenancy has not been validly terminated, and the suit has could not have been filed, fails for this reason also. In this regard, I am keeping in view the amendment brought about to section 106 of Transfer of Property Act by Act 3 of 2003 and as per which Amendment no objection with regard to termination of tenancy is permitted on the ground that the legal notice did not validly terminate the tenancy by a notice ending with the expiry of the tenancy month, as long as a period of 15 days was otherwise given to the tenant to vacate the property. The intention of CS No. 61701/16 Sharad Aggarwal Vs. Page No. 5 of 10 Ashok Kumar Kakkar the legislature is therefore clear that technical objections should not be permitted to defeat substantial justice and the suit for possession of tenanted premises once the tenant has a period of 15 days for vacating the tenanted premises."
22. It is thus, the settled proposition of law that the fact of filing of a suit in itself amounts to notice of termination of tenancy. Thus, there is no merit in the argument of the defendant that the tenancy has not been validly terminated. ...... "
11. The tenancy of the defendant therefore, stood terminated on expiry of a period of 15 days from the date of filing of the present suit. In the present case, suit is filed on 04.06.2016.
12. This court is required to determine whether the defendant shall be called upon to pay arrears of rent ,damages/mesne profit for use of property, if so, with effect from what date and at what rate.
13. In considered view of this court, the defendant is liable to pay arrears of rent as well as damages/mesne profit of the suit property. As held above, the tenancy of the defendant stood terminated and yet the defendant continued to occupy the suit property. For such occupation, he must pay charges to the plaintiff. Reliance in this behalf is placed on the case of Sanjay Gupta v. M/s. Cottage Industries Exposition Ltd. 2008 (3) A.D. (Delhi) 623 wherein Hon'ble High Court of Delhi held that in such circumstances, it is obligatory on the tenant to pay charges for his use of the premises after termination of tenancy. It was observed :
"In a landlord tenant dispute where their relationship is admitted, the obligation of the tenant to pay rent for the tenanted premises during the period that the tenant is in occupation of the premises cannot be disputed. Inherent in this admission is embedded an CS No. 61701/16 Sharad Aggarwal Vs. Page No. 6 of 10 Ashok Kumar Kakkar obligation to pay the rent/occupation charges, because the admission of the said relationship excludes a claim based on any other title to the property. The relationship between a landlord and a tenant is one where the tenant agrees to pay the rent/occupation charges in consideration for the right granted to him by the landlord to use and occupy the premises. Therefore, he cannot, while being in use or occupancy of the premises, not pay the rent/occupation charges therefor."
14. Hence, it is clear that the defendant is required to pay charges to the plaintiff for use of the suit property. The next question which needs to be determined is the date with effect from which the defendant must pay these charges/arrears of rent to the plaintiff for use of the suit property.
15. It has already been held above that the tenancy in question deemed to be terminated after 15 days from filing of the present suit on 04.06.2016 i.e. 20.06.2016. The defendant is liable to make payment of arrears of rent for his use of the property till the said termination. Further defendant is also liable to pay mesne profits/damages for the subsequent period which is from 21.06.2016 in present suit.
16. As per evidence on record, it was agreed between the parties in rent agreement Ex. PW-1/1 that rate of rent will be Rs. 5,000/- per month excluding electricity and maintenance charges.
17. It is further deposed by plaintiff that such tenancy defendant did not tender or pay the rent since 11.04.2016, as deposed him in evidence by way of affidavit. Further, there is no evidence to contrary on record in this regard. Thus, it is held that the defendant is in arrears of rent since 11.04.2016.
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18. As such defendant is liable to pay such arrears of rent w.e.f. 11.04.2016 till the date of deemed termination of tenancy i.e. on 20.06.2016.
The quantum of the said charges is next required to be ascertained. As held above, the tenancy stood deemed terminated on 20.06.2016 as held above. As such for the subsequent period the plaintiff is entitled to recover damages/mesne profits.
19. Mesne profits has been defined by Section 2(12) of Code of Civil Procedure as profits which the wrongful occupant actually received or might have, with ordinary diligence, received. It has been consistently laid down in a catena of decisions that mesne profits must be awarded on the basis of the market rate of rent.
20. The plaintiff examined himself as PW-1, inter alia, in this respect. PW-1 deposed that he is entitled to damages @ Rs.1,000/- per day w.e.f. 11.04.2016. At the same time it is to be noted that the defendant is ex-parte as such there is no evidence to the contrary.
21. As such having regard to the original rate of rent agreed between the parties and general inflationary trends, the market rate of rent can be taken atleast to be the current rate of rent i.e. Rs. 5,000/- per month. Further, it is also observed in the case of National Radio And Electronic Co. vs. Motion Pictures Association (122 (2005) DLT 629), the rate of rent agreed upon between them is suggestive of the market rate and the said rate can be treated to be the quantum of mesne profits which the defendant is liable to pay for use of the premises each month. It is held that plaintiff is entitled to recover damages/mesne profits from CS No. 61701/16 Sharad Aggarwal Vs. Page No. 8 of 10 Ashok Kumar Kakkar the defendant at the said rate of Rs.5,000/= p.m.
22. In terms of Section 34 of Code of Civil Procedure, plaintiff is entitled to pendente lite interest on the aforesaid arrears of rent as well as mesne profit/damages at the rate of 6% per annum from the date of institution of the suit till the date of decree and future interest at the rate of 6% per annum from the date of decree till realization.
23. During the pendency of the suit i.e. from 21.06.2016 till actual vacating the suit premises on 25.05.2018, the defendant remained in illegal occupation of the suit property. For such illegal use and occupation of the suit property, the defendant is liable to pay mesne profits/damages to the plaintiff. Mesne profits/damages shall be continued to be paid by the defendant to the plaintiff till vacant possession of the suit property is finally handed over to the plaintiff. It has already been held above that market rate of rent in the facts and circumstances of present case is Rs. 5,000/- per month. Further, this is less then the same amount which is claimed by the plaintiff. As such it is deemed fit to grant damages/mesne profits at the rate of Rs. 5,000/= per month to be paid by the defendant to the plaintiff from 21.06.2016 till actual handing over of physical possession of suit property on 25.05.2018.
24. Issue no. 1 and 2 are decided in favour of the plaintiff and against the defendant accordingly.
Relief:
25. In the aforesaid facts and circumstances of the case, the suit is decreed in favour of the plaintiff and against the defendant and :
i) Further, a decree for recovery of money is passed in favour CS No. 61701/16 Sharad Aggarwal Vs. Page No. 9 of 10 Ashok Kumar Kakkar of plaintiff and against the defendant on account of arrears of rent w.e.f. 11.04.2016 till 20.06.2016 @ Rs. 5,000/- per month.
The plaintiff is also entitled to pendente lite interest and future interest thereon at the rate of 6% per annum from the date of decree till realization.
ii) Further, decree is passed in favour of plaintiff directing the defendant to pay to the plaintiff damages/mesne profits at the rate of @ Rs 5,000/= from 21.06.2016 till 25.05.2018.
The plaintiff is also entitled to pendente lite interest and future interest thereon at the rate of 6% per annum from the date of decree till realization.
iii) The plaintiff is entitled to recover costs of the suit from the defendant.
26. The direction for recovery of arrears of rent, pendente lite damages/mesne profits shall be executable only after payment appropriate court fee thereon after setting off the court fee already paid on the aforesaid sum by the plaintiff at the time of institution of the plaint.
27. Decree sheet shall be prepared accordingly. Reader is directed to prepare the decree sheet only after adjustment regarding such court fees.
28. File be consigned to Record Room.
Digitally signed by NAVEEN NAVEEN KUMAR
KUMAR KASHYAP
Date: 2019.01.23 15:01:57
KASHYAP +0530
Announced in the open court (NAVEEN K. KASHYAP) nd on 22 January, 2019 SCJ-CUM-RC, ROHINI COURT, NEW DELHI CS No. 61701/16 Sharad Aggarwal Vs. Page No. 10 of 10 Ashok Kumar Kakkar